Wed 31 Aug 2016

Brexit: A Litigator's Reflections

Almost exactly 20 years ago today I set off for the Netherlands to spend a year on the ERASMUS programme studying at the University of Leiden. In Edinburgh we now have to prepare for life outside the EU while Leiden remains at the heart of it. In a recent discussion on Brexit, the editorial board of the Common Market Law Review (which is based in Leiden) commented: "Soon, lawyers will be called upon once again to help with picking up the pieces…But lawyers can be forgiven for feeling overwhelmed as they stand on the threshold of that challenge (53 CML Rev 2016 at 875)". My colleague, Lynda Towers has already commented extensively on the wide-range constitutional implications of Brexit and the triggering of the bewilderingly complex provisions of Article 50 TEU as the means of exiting the EU.

While the constitutional implications are wide-ranging the implications for the substantive law of the UK are also difficult to fathom. The public perception seems to be that EU law is some sort of independent construct which sits aloof over our national law and that the UK can simply "unstitch, emancipate and recalibrate its domestic legal rules" to free itself from this system. The reality, of course, is very different and as the editors of the CML Review point out, the extent of "the deep fusion of these systems will very soon supersede the projected perception that EU law is somehow external to or separate from the making and practice of national law".

The primary law of the EU is found in the Treaties. It is there that we find important fundamental principles such as  equality, non-discrimination, transparency and proportionality which are now the foundation of many areas of national law such as public procurement where they are expressly enshrined in the Public Contracts (Scotland) Regulations 2012. The Treaties also outline the fundamental freedoms open to all EU citizens of goods, persons, services and capital. The idea of unrestricted free movement of people from the EU was undoubtedly responsible, in part at least, for the leave vote. However, free movement within the EU has never been unrestricted and now it seems that the UK may impose more restrictions which may well be reciprocated by the EU in respect of our own citizens. The core of the Treaties, however, is competition. The impact of the anti-monopoly provisions of the Treaties has been immense. The utilities markets in the UK have been opened to competition giving consumers a freedom of choice unparalleled in the history of this country and the Competition Act now directly applies the EU competition rules in our jurisdiction. Free and aggressive competition is going nowhere after Brexit.

The secondary law of the EU derives largely from legislation of the European Council made up of Member State representatives (rather than the Commission as again tends to be the public perception). Regulations, which are important enough to be directly applicable in national law without any national measures being necessary to have them incorporated; and Directives, which set a minimum standard which must then be met by Member States in national legislation transposing them into national law. While Member States are obliged to transpose directives into national law, some are inevitably better than others and the UK has always been one of the best at doing so. The result is, therefore, a huge amount of national legislation which stems directly from EU law and, unless repealed, will remain.  One of the ironies of Brexit is that regulations will likely now require to be transposed if they are to be retained and in many areas of law it is inevitable that they will be. Regulations in fields such as data protection and the environment will all stay in place as otherwise UK nationals will suddenly find that their legal rights have changed and that the benefits of the protections gained by that legislation are lost. The position in respect of one of my own areas of practice, insolvency, is particularly concerning. The Insolvency Regulations that are due to come in next year provide for automatic recognition of insolvency proceedings in EU Member States. What a pity it would be if Brexit meant that the UK fell outwith that regime.

The primary and secondary legislation of the EU is supplemented by the Court of Justice in Luxembourg. For lawyers in common law countries used to detailed majority and dissenting opinions running to dozens and occasionally hundreds of pages, the judgements of the Luxembourg court can, at times, seem Delphic given their brevity. That brevity stems from the fact that the Judges of the court do not give separate decisions but also from the fact that EU law is largely principle-based. In any event, the supremacy of EU law over national law will end as a result of Brexit and, from the moment that we leave the EU, the Court of Session in Scotland and the Supreme Court in London will be the final arbiters of any national legal issues. While it may be superficially comforting to some people that decisions are taken closer to home the reality is that the majority of decisions are already taken closer to home. It is a rare occasion indeed that the Court of Justice has found it necessary to expressly overrule a decision of this country's courts. One interesting aspect of Brexit will be the extent to which national courts still rely on, refer to or consider Court of Justice decisions in reaching their own decisions on legislation which stems from the EU or on national legal issues which have historically been interpreted in the same way across the EU. It would seem inconceivable, for example, that competition law should be treated fundamentally differently within the UK than it is in the rest of the EU particularly as many businesses will operate across Europe and the cost of compliance with different legal rules may mean that businesses are forced to pull out of operating either in the UK or the EU. Equally, for workers operating throughout Europe, consistency of employee rights must be of vital importance. More or less protection in the UK than in the rest of Europe would surely lead to unnecessary difficulties. I rather suspect that the influence of the Court of Justice will not end with Brexit.

As a litigator operating primarily in Scotland the effect of Brexit can be over-stated. However, one area in which Brexit may be more of an issue is in relation to the enforcement of EU judgements in Scotland. At the moment, enforcing EU judgements in Scotland is a relatively quick and inexpensive process under Council Regulation 44/2001. The same can not always be said, however, for enforcing judgements from outwith the EU and the rules for non-EU countries will become the default position following Brexit. The UK may end up joining the Lugano Convention which the Swiss and Norwegians benefit from at the moment and which would hopefully permit a process not too dissimilar to the current one. If it does not then a more difficult and expensive process awaits EU businesses and individuals wishing to enforce judgements in this jurisdiction. Indeed, the difficulties will not be a one-way street. Far from it. After Brexit and without a satisfactory replacement to the Council Regulation 44/2001 being put in place, UK businesses will be at the mercy of the national regime applicable in each individual Member State for the enforcement of non-EU judgements. So, for any European business owners reading this, my advice is to get your EU judgement registered in the UK now.

In short, the technical legal implications of Brexit are indeed overwhelming and I do not envy my colleagues in the legal profession who have to advise the governments of the EU on the transitional arrangements. I only hope that, when the process has reached its conclusion, today's students in this jurisdiction have the same privileges that I did to travel and study throughout the EU in places like Leiden.

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